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TMI Blog2008 (4) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed in exercise of revisional jurisdiction against the concurrent finding of the District Consumer Disputes Redressal Forum, Yamuna Nagar (in short 'District Forum') and State Consumer Disputes Redressal Commission (in short 'State Commission') dated 11.5.2001 and 12.7.2001 respectively. Commission has also issued directions. 3. The review petition filed was also dismissed, which also forms subject matter of challenge. 4. Background facts in a nutshell are as follows: The respondent filed a complaint in respect of an advertisement given by the appellant, alleging unfair trade practices. The advertisement was issued in newspapers and magazines in 1999 for the cigarettes manufactured and sold by it under the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he continues to smoke cigarette for more than two decades. The National Commission held as follows: The case of the complainant is that smoking of cigarette by Akshay Kumar with the slogans used in advertisement would detract the people from the statutory warning. Seeing comparative size of the letters etc. the statutory warning in our view loses its prominence which is usurped by more prominent and attractive Akshay Kumar et al and is sufficient to detract the attention of the viewers from the statutory warning to the image of Akshay Kumar with the slogan indicating smokers of Red and White cigarette could be super actor performing all the film stunts without duplicates. This according to the National Commission was suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for compensation made in the complaint. With regard to direction (i) to dis- continue unfair trade practice and not to publish any advertisement like the impugned advertisement, the appellant took the stand that when direction was given by order dated 20.2.2006 an enactment being the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short 'Advertisement Act') had already come into force w.e.f. 18.5.2003 by which all advertisements in relation to cigarettes had already been prohibited. As such there was no need for issuing such direction. 6. The Review Petition was dismissed without considering the specific contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Section 14 of the Act has been amended w.e.f. 15.3.2003 and following Clause (hc) was added: (hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the Opposite Party responsible for issuing such misleading advertisement. 9. Therefore, the direction No. (ii) as given could not have been given when no such clause existed at the time of issuance of the advertisement, and as such it could not have been invoked. The complaint was filed on 10.1.2000. The prayer was as follows: It is, therefore respectfully prayed that the complaint of the Complainant may kindly be accepted in the interest of the justice, equity and fair play. And the Opposite Party may kindly be directed to discon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (i) was given without any material or evidence whatsoever and there was not even a suggestion/pleading that the advertisement was of Akshay Kumar or that he could perform certain stunts without duplicates. There was not even an allegation that the statutory warning was detracted from. When such serious allegation which was required to be established was not even specifically pleaded and when nothing specific was indicated in the complaint, the Commission should not have given the direction on pure surmises. In this context, decision of the Privy Council in Bharat Dharma Syndicate v. Harish Chandra (1937)39BOMLR963 and of this Court in The Union of India v. Pandurang Kashinath More 1961)IILLJ427SC are relevant. So far as direction No. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was pending before the Civil Court. The District Forum and the State Commission had, therefore, dismissed the complaint of the appellant. 19. It is to be noted that the National Commission itself noted that the respondent was not representing a Voluntary Consumer Association registered under the Companies Act, 1956 or under any other law for the time being in force and was not entitled to file a complaint about unfair trade practice to represent other consumers. Having said so, it is not understandable as to how the National Commission even proceeded to deal with the complaint. It also noted that the complainant had not moved any application or obtained any permission under Section 13(6) of the Act and/or no such permission was gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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